Soule v. Worsham

Howe, J. In this case the plaintiffs caused a writ of fieri faeias to-be issued upon their judgment against the defendant, and certain property to be sold by A. S. Norwood, then sheriff of East Feliciana, and now deceased. As the foundation of the proceeding -now before us they afterwards took a rule upon the' administrator of the late sheriff, and upon his sureties, L. G. Perkins, Thomas W. Robins and J. R. Jackson, to show cause why judgment should not be rendered against them in solido, for a sum alleged to have been received by Norwood, sheriff, as proceeds of the sale above mentioned, and which he had neglected to pay over. [79] The administrator answered by pleading the general denial, and the prescription of two years. The sureties excepted to the action on the ground that they could not be proceeded against thus summarily by rule. Their exception was overruled, and they filed an answer to the merits. The court a qua gave judgment against the defendants. in solido for the amount claimed, the sureties appealed. We are of opinion that tho court erred in not maintaining the exception of the appellants. The right-to - proceed against tho sheriff" or his succession, by rule, does not necessarily include tho right to. proceed in this summary manner against his sureties. In the absence of special provisions of law, permitting tho summary, process, the proceeding should be initiated by petition and citation. Weiser v. Smith, lately decided; 6 Rob. 435; 3 Art. 206, 434; 12 An. 201; 14 An. 390. It is therefore ordered that the judgment appealed from be, as to the appellants, avoided and reversed, and the rule as to them dismissed, with costs.